It’s a common misconception that an employee who is pregnant or a maternity leave cannot be made redundant, and that’s actually not the case. What you cannot do is make an employee redundant because they are pregnant or on maternity leave because that would be unlawful. Things to consider when an employee who is pregnant or on maternity leave is being considered for redundancy is that you must make sure that you consult with that employee in the same way as you would do were they present in the office. Often times an employee who’s on maternity leave gets overlooked and they’re not consulted with, which could lead to their redundancy being unfair or unlawful. You also need to consider when you’re looking at the criteria for selection for redundancy, whether your criteria are indirectly discriminating against a pregnant employee or an employee on maternity leave. For instance, if one of your criteria for selection is productivity, say for instance you operate a factory and your criteria is how many widgets has my employee made in total in the last year, an employee who is on maternity leave would be discriminated against by that criteria by virtue of the fact that they may not have been present in the factory for the whole year. So you need to make sure that your criteria are fair when it comes to pregnant or maternity leave employees. Now, if a pregnant employee or one who’s on maternity leave is selected for redundancy, then the position regarding alternative employment does change for that employee. If you have an alternative role available, you have to offer it to that employee by virtue of the fact that they are pregnant or on maternity leave. You don’t need to get them to apply for the role. You must offer it to them in the first instance. Obviously, these issues can be tricky, and so if you are in a situation where you need to make redundancies and you have employees who are pregnant or on maternity leave, then the best idea would be to seek independent legal advice at an early stage to make sure that nothing you are doing is going to lead you into trouble.
